Exhibit 10.2
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and
entered into as of June 28, 2007, by and among AMERICAN HOME MORTGAGE INVESTMENT
CORP., a Maryland corporation (the "Company"), AHM CAPITAL TRUST I, a statutory
trust organized under the laws of the State of Delaware (the "Trust" and
together with the Company, the "Issuers"), and the purchasers identified on
Schedule I hereto, as purchasers (each a purchaser and, collectively the
"Purchasers").
This Agreement is made pursuant to the Purchase Agreement, dated
June 28, 2007 (the "Purchase Agreement"), among the Issuers and the Purchasers
with respect to the issue and sale by the Trust and the purchase by the
Purchasers of 125,000 9.75% Convertible Trust Preferred Securities (liquidation
amount $1,000 per security) representing undivided beneficial interests in the
assets of the Trust (the "Trust Preferred Securities"). The entire proceeds from
the sale of the Trust Preferred Securities will be combined with the entire
proceeds from the sale by the Trust to the Company of its common securities
(liquidation amount $1,000 per security) (the "Trust Common Securities") and
will be used by the Trust to purchase $128,866,000 aggregate principal amount of
the Company's 9.75% Junior Subordinated Convertible Debentures due June 30, 2037
(the "Junior Subordinated Debentures"). The Trust Preferred Securities are
guaranteed by the Company to the extent set forth in the Guarantee Agreement
between the Company and Wilmington Trust Company, as trustee thereunder, dated
the date hereof (the "Guarantee"), and are convertible into the common stock,
par value $0.01 per share (the "Common Stock"), of the Company. In order to
induce the Purchasers to enter into the Purchase Agreement, the Issuers have
agreed to provide the registration rights set forth in this Agreement. The
execution of this Agreement is a condition to the closing under the Purchase
Agreement.
The Issuers agree with the Purchasers, (i) for the benefit of the
Purchasers and (ii) for the benefit of the beneficial owners (including the
Purchasers) from time to time of the Trust Preferred Securities and the Junior
Subordinated Debentures, and the beneficial owners from time to time of the
Underlying Securities (as defined herein) issued upon conversion of the Trust
Preferred Securities or the Junior Subordinated Debentures, if any, (each of the
foregoing a "Holder" and together the "Holders"), as follows:
SECTION 1. Definitions. As used in this Agreement, the following terms
shall have the following meanings:
"Affiliate:" With respect to any specified person, an
"affiliate," as defined in Rule 144, of such person.
"Business Day:" Each Monday, Tuesday, Wednesday, Thursday and
Friday that is not a day on which banking institutions in The City of New York
are authorized or required by law, regulation or executive order to remain
closed.
"Common Stock:" The Common Stock, $0.01 par value, of the Company
and any other shares of common stock as may constitute "Common Stock" for
purposes of the Indenture, including the Underlying Securities.
"Company:" See the first paragraph hereof.
"Damages Accrual Period:" See Section 2(e) hereof.
"Damages Payment Date:" Each January 1, April 1, July 1 and
October 1.
"Declaration:" The Amended and Restated Declaration of Trust,
dated as of the date hereof, among the Company, as depositor, the trustees named
therein and the holders from time to time of undivided beneficial interests in
the assets of the Trust, pursuant to which the Trust Preferred Securities and
Trust Common Securities are being issued.
"Deferral Notice:" See Section 3(h) hereof.
"Deferral Period:" See Section 3(h) hereof.
"Effectiveness Deadline Date:" See Section 2(a) hereof.
"Effectiveness Period:" The period beginning on the Issue Date
and ending on the earlier of (i) the sale pursuant to the Initial Shelf
Registration Statement of all Registrable Securities thereunder and (ii) five
years following the latest issuance of the Trust Preferred Securities or the
Junior Subordinated Debentures, provided, however, that such five year period
shall be reduced to two years if the Company receives written guidance from the
SEC or an opinion of counsel addressed to the Holders that the Registrable
Securities are eligible for sale pursuant to Rule 144(k).
"Event:" See Section 2(e) hereof.
"Event Date:" See Section 2(e) hereof.
"Event Termination Date:" See Section 2(e) hereof.
"Exchange Act:" The Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC promulgated thereunder.
"Filing Deadline Date:" See Section 2(a) hereof.
"Guarantee:" See the second paragraph hereof.
"Holder:" See the third paragraph hereof.
"Indenture:" The Indenture, dated as of the date hereof, between
the Company and Wilmington Trust Company, as debenture trustee, pursuant to
which the Junior Subordinated Debentures are being issued.
"Initial Shelf Registration Statement:" See Section 2(a) hereof.
"Issue Date:" means June 28, 2007.
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"Issuer Free Writing Prospectus:" See Section 2(d) hereof.
"Junior Subordinated Debentures" or "Junior Subordinated
Debenture:" See the second paragraph hereof.
"Liquidated Damages Amount:" See Section 2(e) hereof.
"Material Event:" See Section 3(h) hereof.
"Notice and Questionnaire:" A written notice delivered to the
Company containing substantially the information called for by the Selling
Securityholder Notice and Questionnaire attached as Annex A to this Agreement.
"Notice Holder:" On any date, any Holder that has delivered a
Notice and Questionnaire to the Company on or prior to such date.
"Prospectus:" The prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 415 promulgated under the
Securities Act), as amended or supplemented by any amendment or Prospectus
supplement, including post-effective amendments, and all materials incorporated
by reference in such Prospectus.
"Purchase Agreement:" See the second paragraph hereof.
"Purchasers:" See the first paragraph hereof.
"Record Date:" With respect to any Damages Payment Date relating
to any Trust Preferred Security or Junior Subordinated Debenture as to which any
Liquidated Damages Amount has accrued, (i) the 15th day of the month immediately
preceding such Damages Payment Date if the Damages Accrual Period has not ended,
or (ii) the date of the end of the Damages Accrual Period.
"Record Holder:" With respect to any Damages Payment Date
relating to any Trust Preferred Security or Junior Subordinated Debenture as to
which any Liquidated Damages Amount has accrued, the registered holder of such
Trust Preferred Security or Junior Subordinated Debenture, as applicable, on the
Record Date.
"Registrable Securities:" The Common Stock into which the Junior
Subordinated Debentures or Trust Preferred Securities have been converted or
exchanged, and any security issued with respect thereto upon any stock dividend,
split, merger or similar event until, in the case of any such security, the
earliest of (i) its effective registration under the Securities Act and resale
in accordance with the Registration Statement covering it, (ii) its sale to the
public pursuant to Rule 144 or (iii) the expiration of the Effectiveness Period.
"Registration Statement:" Any registration statement of the
Company that covers any of the Registrable Securities pursuant to the provisions
of this Agreement, including the Prospectus, amendments and supplements to such
registration statement, including post-effective
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amendments, all exhibits, and all materials incorporated by reference in such
registration statement.
"Rule 144:" Rule 144 under the Securities Act, as such rule may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
"Rule 144A:" Rule 144A under the Securities Act, as such rule may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
"SEC:" The Securities and Exchange Commission.
"Securities:" Collectively means the Trust Preferred Securities,
the Junior Subordinated Debentures and the Underlying Securities.
"Securities Act:" The Securities Act of 1933, as amended, and
the rules and regulations promulgated by the SEC thereunder.
"Shelf Registration Statement:" See Section 2(a) hereof.
"Subsequent Shelf Registration Statement:" See Section 2(b)
hereof.
"Trust Common Securities:" See the second paragraph hereof.
"Trust Preferred Securities" or " Trust Preferred Security:"
See the second paragraph hereof.
"Trustee:" Wilmington Trust Company (or any successor entity),
in its role as Debenture Trustee under the Indenture and in its role as Property
Trustee under the Declaration.
"Underlying Securities:" The Common Stock into which the Trust
Preferred Securities and Junior Subordinated Debentures are convertible or
issued upon any such conversion.
SECTION 2. Shelf Registration.
(a) The Company shall prepare or cause to be prepared and shall
use its best efforts to file or cause to be filed with the SEC no later than a
date which is ninety (90) days after the Issue Date (the "Filing Deadline Date")
a Registration Statement for an offering to be made on a delayed or continuous
basis pursuant to Rule 415 of the Securities Act (a "Shelf Registration
Statement") registering the resale from time to time by Holders thereof of all
of the Registrable Securities (the "Initial Shelf Registration Statement"). The
Initial Shelf Registration Statement shall be on Form S-3 or another appropriate
form permitting registration of such Registrable Securities for resale by such
Holders in accordance with the methods of distribution elected by the Holders
and set forth in the Initial Shelf Registration Statement; provided, that in no
event will such method(s) of distribution take the form of an underwritten
offering of the Registrable Securities without the prior agreement of the
Company. The Company shall use its best efforts to cause the Initial Shelf
Registration Statement to be declared effective under the Securities Act by the
date (the "Effectiveness Deadline Date") that is one hundred and eighty
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(180) days after the Issue Date, and to keep the Initial Shelf Registration
Statement (or any Subsequent Shelf Registration Statement) continuously
effective under the Securities Act until the expiration of the Effectiveness
Period, subject to the rights of the Company under Section 3(h) to create a
Deferral Period. At the time the Initial Shelf Registration Statement is
declared effective, each Holder that became a Notice Holder on or prior to the
date ten (10) Business Days prior to such time of effectiveness shall be named
as a selling securityholder in the Initial Shelf Registration Statement and the
related Prospectus in such a manner as to permit such Holder to deliver such
Prospectus to purchasers of Registrable Securities in accordance with applicable
law.
(b) If the Initial Shelf Registration Statement or any Subsequent
Shelf Registration Statement ceases to be effective for any reason at any time
during the Effectiveness Period, the Company shall use its best efforts to
obtain the prompt withdrawal of any order suspending the effectiveness thereof,
and in any event shall within thirty (30) days of such cessation of
effectiveness amend the Shelf Registration Statement in a manner reasonably
expected by the Company to obtain the withdrawal of the order suspending the
effectiveness thereof, or file an additional Shelf Registration Statement
covering all of the Registrable Securities (a "Subsequent Shelf Registration
Statement"). If a Subsequent Shelf Registration Statement is filed, the Company
shall use its best efforts to cause the Subsequent Shelf Registration Statement
to become effective as promptly as is practicable after such filing and to keep
such Registration Statement (or subsequent Shelf Registration Statement)
continuously effective until the end of the Effectiveness Period.
(c) The Company shall supplement and amend the Shelf Registration
Statement if required by the rules, regulations or instructions applicable to
the registration form used by the Company for such Shelf Registration Statement
if required by the Securities Act or, to the extent to which the Company does
not reasonably object, as reasonably requested by the Purchasers or by the
Trustee on behalf of the registered Holders.
(d) Each Holder of Registrable Securities agrees that if such
Holder wishes to sell Registrable Securities pursuant to a Shelf Registration
Statement and related Prospectus, it will do so only in accordance with this
Section 2(d) and Section 3(h). Each Holder of Registrable Securities wishing to
sell Registrable Securities pursuant to a Shelf Registration Statement and
related Prospectus agrees to deliver a Notice and Questionnaire to the Company
at least eight (8) but not more than twenty (20) Business Days prior to any
intended distribution of Registrable Securities under the Shelf Registration
Statement. From and after the date the Initial Shelf Registration Statement is
declared effective, the Company shall, as promptly as reasonably practicable
after the date a Notice and Questionnaire is delivered, and in any event within
five (5) Business Days after such date, (i) if required by applicable law, file
with the SEC a post-effective amendment to the Shelf Registration Statement or
prepare and, if required by applicable law, file a supplement to the related
Prospectus or a supplement or amendment to any document incorporated therein by
reference or file any other document required by the SEC so that the Holder
delivering such Notice and Questionnaire is named as a selling securityholder in
the Shelf Registration Statement and the related Prospectus in such a manner as
to permit such Holder to deliver such Prospectus to purchasers of the
Registrable Securities in accordance with applicable law and, if the Company
shall file a post-effective amendment to the Shelf Registration Statement, use
its best efforts to cause such post-effective amendment to be declared effective
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under the Securities Act as promptly as is practicable; (ii) provide such Holder
copies of any documents filed pursuant to Section 2(d)(i); and (iii) notify such
Holder as promptly as practicable after the effectiveness under the Securities
Act of any post-effective amendment filed pursuant to Section 2(d)(i); provided,
that if such Notice and Questionnaire is delivered during a Deferral Period, the
Company shall so inform the Holder delivering such Notice and Questionnaire and
shall take the actions set forth in clauses (i), (ii) and (iii) above upon
expiration of the Deferral Period in accordance with Section 3(h).
Notwithstanding anything contained herein to the contrary, the Company shall be
under no obligation to name any Holder that is not a Notice Holder as a selling
securityholder in any Registration Statement or related Prospectus; provided,
however, that any Holder that becomes a Notice Holder pursuant to the provisions
of Section 2(d) of this Agreement (whether or not such Holder was a Notice
Holder at the time the Registration Statement was initially declared effective)
shall be named as a selling securityholder in the Registration Statement or
related Prospectus subject to and in accordance with the requirements of this
Section 2(d).
The Issuers represent and agree that, unless they obtain the
prior consent of a majority of the Registrable Securities that are registered
under the Shelf Registration Statement at such time or the approval of the
counsel for the holders of Registrable Securities or the consent of the
Purchasers in connection with any underwritten offering of Registrable
Securities, and each Holder represents and agrees that, unless it obtains the
prior consent of the Issuers and the Purchasers, it will not make any offer
relating to the Securities that would constitute an "issuer free writing
prospectus," as defined in Rule 433 (an "Issuer Free Writing Prospectus"), or
that would otherwise constitute a "free writing prospectus," as defined in Rule
405, required to be filed with the SEC. The Issuers represent that any Issuer
Free Writing Prospectus, when taken together with the information in the Shelf
Registration Statement and the Prospectus, will not include any untrue statement
of a material fact or omit to state any material fact necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading.
(e) The parties hereto agree that the Holders of Registrable
Securities will suffer damages, and that it would not be feasible to ascertain
the extent of such damages with precision, if (i) the Initial Shelf Registration
Statement has not been filed on or prior to the Filing Deadline Date, (ii) the
Initial Shelf Registration Statement has not been declared effective under the
Securities Act on or prior to the Effectiveness Deadline Date, or (iii) the
aggregate duration of Deferral Periods in any period exceeds the number of days
permitted in respect of such period pursuant to Section 3(h) hereof (each of the
events of a type described in any of the foregoing clauses (i) through (iii) are
individually referred to herein as an "Event," and the Filing Deadline Date in
the case of clause (i), the Effectiveness Deadline Date in the case of clause
(ii), and the date on which the aggregate duration of Deferral Periods in any
period exceeds the number of days permitted by Section 3(h) hereof in the case
of clause (iii), being referred to herein as an "Event Date"). Events shall be
deemed to continue until the "Event Termination Date," which shall be the
following dates with respect to the respective types of Events: the date the
Initial Shelf Registration Statement is filed in the case of an Event of the
type described in clause (i), the date the Initial Shelf Registration Statement
is declared effective under the Securities Act in the case of an Event of the
type described in clause (ii) and termination of the Deferral Period that caused
the limit on the aggregate duration of Deferral Periods in a period set forth in
Section
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3(h) to be exceeded in the case of the commencement of an Event of the type
described in clause (iii).
Accordingly, commencing on (and including) any Event Date and
ending on (but excluding) the next date on which there are no Events that have
occurred and are continuing (a "Damages Accrual Period"), the Company agrees to
pay, as liquidated damages and not as a penalty, an amount (the "Liquidated
Damages Amount"), payable on the Damages Payment Dates to Record Holders of then
outstanding Junior Subordinated Debentures that are Registrable Securities (and
the Trust agrees to pay such amounts to the holders of the Trust Preferred
Securities) accruing, for each portion of such Damages Accrual Period beginning
on and including a Damages Payment Date (or, in respect of the first time that
the Liquidation Damages Amount is to be paid to Record Holders on a Damages
Payment Date as a result of the occurrence of any particular Event, beginning on
and including the Event Date) and ending on but excluding the first to occur of
(A) the date of the end of the Damages Accrual Period or (B) the next Damages
Payment Date, at a rate per annum equal to 2.00% of the aggregate principal
amount of such Junior Subordinated Debentures, determined as of the Record Date.
Notwithstanding the foregoing, no Liquidated Damages Amounts
shall accrue as to any Underlying Securities at any time nor as to any Junior
Subordinated Debenture (and the corresponding Trust Preferred Security) from and
after the earlier of (x) the date such Underlying Security is no longer a
Registrable Security and (y) expiration of the Effectiveness Period. The rate of
accrual of the Liquidated Damages Amount shall not exceed the rate provided for
in this Section 2(e) notwithstanding the occurrence of multiple concurrent
Events. Following the cure of all Events requiring the payment by the Company of
Liquidated Damages Amounts to the Holders of Registrable Securities pursuant to
this Section, the accrual of Liquidated Damages Amounts will cease (without in
any way limiting the effect of any subsequent Event requiring the payment of
Liquidated Damages Amount by the Company).
The Trustee shall be entitled, on behalf of Holders of the Trust
Preferred Securities, the Junior Subordinated Debentures or the Underlying
Securities, to seek any available remedy for the enforcement of this Agreement,
including, with respect to Trust Preferred Securities and Junior Subordinated
Debentures, for the payment of any Liquidated Damages Amount. Notwithstanding
the foregoing, the parties agree that the sole remedy for a violation of the
terms of this Agreement shall be such liquidated damages.
All of the Issuers' obligations set forth in this Section 2(e)
that are outstanding with respect to any Security shall survive until such time
as all such obligations with respect to such Security have been satisfied in
full (notwithstanding termination of this Agreement pursuant to Section 8(j)).
The parties hereto agree that the liquidated damages provided for
in this Section 2(e) constitute a reasonable estimate of the damages that may be
incurred by Record Holders of then outstanding Trust Preferred Securities and
Junior Subordinated Debentures whose Underlying Securities are Registrable
Securities by reason of the failure of the Shelf Registration Statement to be
filed or declared effective or available for effecting resales of Registrable
Securities in accordance with the provisions hereof.
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SECTION 3. Registration Procedures. In connection with the registration
obligations of the Issuers under Section 2 hereof, the Issuers shall:
(a) Before filing any Registration Statement or Prospectus or any
amendments or supplements thereto with the SEC, furnish to the Purchasers copies
of all such documents proposed to be filed and give reasonable consideration to
such comments as the Purchasers reasonably shall propose within three (3)
Business Days of the delivery of such copies to the Purchasers.
(b) Subject to Section 3(h), prepare and file with the SEC such
amendments and post-effective amendments to each Registration Statement as may
be necessary to keep such Registration Statement continuously effective for the
applicable period specified in Section 2(a); cause the related Prospectus to be
supplemented by any required Prospectus supplement, and as so supplemented to be
filed pursuant to Rule 424 (or any similar provisions then in force) under the
Securities Act; and use their best efforts to comply with the provisions of the
Securities Act applicable to it with respect to the disposition of all
securities covered by such Registration Statement during the Effectiveness
Period in accordance with the intended methods of disposition by the sellers
thereof set forth in such Registration Statement as so amended or such
Prospectus as so supplemented.
(c) As promptly as practicable give notice to the Notice Holders
and the Purchasers (i) when any Prospectus, Prospectus supplement, Registration
Statement or post-effective amendment to a Registration Statement (other than
any such Prospectus supplement, Registration Statement or post-effective
amendment to a Registration Statement which is filed solely to name additional
selling security holders or to reflect any other matters that are not of a
material nature) has been filed with the SEC and, with respect to a Registration
Statement or any post-effective amendment, when the same has been declared
effective, (ii) of any request, following the effectiveness of the Initial Shelf
Registration Statement under the Securities Act, by the SEC or any other federal
or state governmental authority for amendments or supplements to any
Registration Statement or related Prospectus or for additional information,
(iii) of the issuance by the SEC or any other federal or state governmental
authority of any stop order suspending the effectiveness of any Registration
Statement or the initiation or threatening of any proceedings for that purpose,
and (iv) of the receipt by the Company or the Trust of any notification with
respect to the suspension of the qualification or exemption from qualification
of any of the Registrable Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose, which notice may,
at the discretion of the Company (or as required pursuant to Section 3(h)),
state that it constitutes a Deferral Notice, in which event the provisions of
Section 3(h) shall apply.
(d) Use their reasonable best efforts to obtain the withdrawal of
any order suspending the effectiveness of a Registration Statement or the
lifting of any suspension of the qualification (or exemption from qualification)
of any of the Registrable Securities for sale in any jurisdiction in which they
have been qualified for sale, in either case at the earliest possible moment.
(e) As promptly as reasonably practicable furnish to each Notice
Holder and the Purchasers, upon their request and without charge, at least one
(1) conformed copy of the
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Registration Statement and any amendment thereto, including financial
statements, if any, but excluding schedules, all documents incorporated or
deemed to be incorporated therein by reference and all exhibits (unless
requested in writing to the Company or the Trust by such Notice Holder or the
Purchasers, as the case may be).
(f) During the Effectiveness Period, deliver to each Notice
Holder in connection with any sale of Registrable Securities pursuant to a
Registration Statement, without charge, as many copies of the Prospectus or
Prospectuses relating to such Registrable Securities (including each preliminary
Prospectus) and any amendment or supplement thereto as such Notice Holder may
reasonably request; and the Company hereby consents (except during such periods
that a Deferral Notice is outstanding and has not been revoked) to the use of
such Prospectus or each amendment or supplement thereto by each Notice Holder in
connection with any offering and sale of the Registrable Securities covered by
such Prospectus or any amendment or supplement thereto in the manner set forth
therein.
(g) Subject to Section 3(h), prior to any public offering of the
Registrable Securities pursuant to the Shelf Registration Statement, use their
reasonable best efforts to register or qualify or cooperate with the Notice
Holders in connection with the registration or qualification (or exemption from
such registration or qualification) of such Registrable Securities for offer and
sale under the securities or Blue Sky laws of such jurisdictions within the
United States as any Notice Holder reasonably requests in writing (which request
may be included in the Notice and Questionnaire); prior to any public offering
of the Registrable Securities pursuant to the Shelf Registration Statement, use
their best efforts to keep each such registration or qualification (or exemption
therefrom) effective during the Effectiveness Period in connection with such
Notice Holder's offer and sale of Registrable Securities pursuant to such
registration or qualification (or exemption therefrom) and do any and all other
acts or things necessary to enable the disposition in such jurisdictions of such
Registrable Securities in the manner set forth in the relevant Registration
Statement and the related Prospectus; provided, that neither the Company nor the
Trust will be required to (i) qualify as a foreign corporation or as a dealer in
securities in any jurisdiction where they are not otherwise qualified but for
this Agreement or (ii) take any action that would subject them to general
service of process in suits or to taxation in any such jurisdiction where they
are not then so subject.
(h) Upon (A) the issuance by the SEC of a stop order suspending
the effectiveness of the Shelf Registration Statement or the initiation of
proceedings with respect to the Shelf Registration Statement under Section 8(d)
or 8(e) of the Securities Act, (B) the occurrence of any event or the existence
of any fact (a "Material Event") as a result of which (i) any Registration
Statement shall contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading, or (ii) any Prospectus shall contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, or (C) the
occurrence or existence of any pending corporate development that, in the
Company's discretion, makes it appropriate to suspend the availability of the
Shelf Registration Statement and the related Prospectus, (i) in the case of
clause (B) above, subject to the next sentence, as promptly as practicable
prepare and file a post-effective amendment to such Registration Statement or a
supplement to the related Prospectus or any document incorporated therein by
reference or file
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any other required document that would be incorporated by reference into such
Registration Statement and Prospectus so that such Registration Statement does
not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading, and such Prospectus does not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, as thereafter
delivered to the purchasers of the Registrable Securities being sold thereunder,
and, in the case of a post-effective amendment to a Registration Statement,
subject to the next sentence, use their best efforts to cause it to be declared
effective as promptly as is reasonably practicable, and (ii) give notice to the
Notice Holders that the availability of the Shelf Registration Statement is
suspended (a "Deferral Notice") and, upon receipt of any Deferral Notice, each
Notice Holder agrees not to sell any Registrable Securities pursuant to the
Registration Statement until such Notice Holder's receipt of copies of the
supplemented or amended Prospectus provided for in clause (i) above, or until it
is advised in writing by the Company or the Trust that the Prospectus may be
used, and has received copies of any additional or supplemental filings that are
incorporated or deemed incorporated by reference in such Prospectus. The Issuers
will use their reasonable best efforts to ensure that the use of the Prospectus
may be resumed (x) in the case of clause (A) above, as promptly as practicable,
(y) in the case of clause (B) above, as soon as, in the sole judgment of the
Company, public disclosure of such Material Event would not be prejudicial to or
contrary to the interests of the Company or the Trust, if necessary to avoid
unreasonable burden or expense, as soon as reasonably practicable thereafter and
(z) in the case of clause (C) above, as soon as, in the sole judgment of the
Company, such suspension is no longer appropriate. The period during which the
availability of the Registration Statement and any Prospectus is suspended (the
"Deferral Period") shall, without the Company or the Trust incurring any
obligation to pay liquidated damages pursuant to Section 2(e), not exceed thirty
(30) days in any three (3) month period or ninety (90) days in any twelve (12)
month period.
(i) Comply with all applicable rules and regulations of the SEC
and make generally available to the Company's securityholders earning statements
(which need not be audited) satisfying the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder (or any similar rule promulgated under
the Securities Act) no later than forty-five (45) days after the end of any
12-month period (or ninety (90) days after the end of any 12-month period if
such period is a fiscal year) commencing on the first day of the first fiscal
quarter of the Company commencing after the effective date of a Registration
Statement, which statements shall cover said 12-month periods.
(j) If reasonably requested in writing by a Holder or Holders of
Registrable Securities and solely at the Company's discretion, the Company will
consider an underwritten offering of Registrable Securities held by such Holder
or Holders upon terms and conditions to be agreed upon at the time of such
underwritten offering.
(k) Cooperate with each Notice Holder to facilitate the timely
preparation and delivery of certificates representing Registrable Securities
sold pursuant to a Registration Statement and registered in such names as such
Notice Holder may request in writing at least two Business Days prior to any
sale of such Registrable Securities.
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(l) Make reasonable effort to provide such information as is
required for any filings required to be made with the National Association of
Securities Dealers, Inc.
(m) Upon (i) the filing of the Initial Shelf Registration
Statement and (ii) the effectiveness of the Initial Shelf Registration
Statement, announce the same, in each case by release to Reuters Economic
Services and Bloomberg Business News.
SECTION 4. Holder's Obligations. Each Holder agrees, by acquisition of
the Registrable Securities, that no Holder of Registrable Securities shall be
entitled to sell any of such Registrable Securities pursuant to a Registration
Statement or to receive a Prospectus relating thereto, unless such Holder has
furnished the Company with a Notice and Questionnaire as required pursuant to
Section 2(d) hereof (including the information required to be included in such
Notice and Questionnaire) and the information set forth in the next sentence.
Each Notice Holder agrees promptly to furnish to the Company all information
required to be disclosed in order to make the information previously furnished
to the Company by such Notice Holder not misleading and any other information
regarding such Notice Holder and the distribution of such Registrable Securities
as may be required to be disclosed in the Registration Statement under
applicable law or pursuant to SEC comments. Each Holder further agrees,
following termination of the Effective Period, to notify the Company within ten
(10) Business Days of request, of the amount of Registrable Securities sold
pursuant to the Registration Statement and, in the absence of a response, the
Company may assume that all of the Holder's Registrable Securities were so sold.
SECTION 5. Registration Expenses. The Company shall bear all fees and
expenses incurred in connection with the performance by the Issuers of their
obligations under Sections 2 and 3 of this Agreement whether or not any of the
Registration Statements are declared effective. Such fees and expenses shall
include, without limitation, (i) all registration and filing fees (including,
without limitation, reasonable fees and disbursements of the counsel specified
in the next sentence in connection with Blue Sky qualifications of the
Registrable Securities under the laws of such jurisdictions as the Notice
Holders of a majority of the Registrable Securities being sold pursuant to a
Registration Statement may designate), (ii) printing expenses (including,
without limitation, expenses of printing certificates for Registrable Securities
in a form eligible for deposit with The Depository Trust Company), (iii)
duplication expenses relating to copies of any Registration Statement or
Prospectus delivered to any Holders hereunder, (iv) fees and disbursements of
counsel for the Issuers in connection with the Shelf Registration Statement, and
(v) reasonable fees and disbursements of the Trustee and its counsel and of the
registrar and transfer agent for the Common Stock. In addition, the Company
shall bear or reimburse the Notice Holders for the reasonable fees and
disbursements of one firm of legal counsel for the Holders incurred in reviewing
and commenting upon the Shelf Registration Statement prior to its effectiveness,
which shall, upon the written consent of the Purchasers (which shall not be
unreasonably withheld), be a nationally recognized law firm experienced in
securities law matters designated by the Company. In addition, the Company shall
pay the internal expenses of the Issuers (including, without limitation, all
salaries and expenses of officers and employees performing legal or accounting
duties), the expense of any annual audit, the fees and expenses incurred in
connection with the listing of the Registrable Securities on any securities
exchange on which the same securities of the Company are then listed and the
fees and expenses of any person, including special experts, retained by the
Company or the Trust.
11
SECTION 6. Indemnification; Contribution.
(a) The Issuers agree, jointly and severally, to indemnify and
hold harmless each of the Purchasers and each Holder of Registrable Securities
and each person, if any, who controls any Purchaser or any Holder of Registrable
Securities within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, resulting from any untrue
statement or alleged untrue statement of a material fact
contained in the Registration Statement (or any amendment
thereto), or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein,
in light of the circumstances under which they were made, not
misleading or resulting from any untrue statement or alleged
untrue statement of a material fact included in any preliminary
Prospectus or the Prospectus (or any amendment or supplement
thereto) or any Issuer Free Writing Prospectus (or any amendment
or supplement thereto) or the omission or alleged omission
therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading;
(ii) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever based upon
any such untrue statement or omission, or any such alleged untrue
statement or omission, provided that (subject to Section 6(c)
below) any such settlement is effected with the prior written
consent of the Company; and
(iii) subject to Section 6(c) below, against any and all
expense whatsoever, as incurred (including the fees and
disbursements of counsel), reasonably incurred in investigating,
preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not
paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company or the
Trust by any Purchaser on their own behalf or any Holder of Registrable
Securities and each person, if any, who controls any Purchaser or any such
Holder of Registrable Securities expressly for use in the Registration Statement
(or any amendment thereto), or any preliminary Prospectus or the Prospectus (or
any amendment or supplement thereto) or any Issuer Free Writing Prospectus (or
any amendment or supplement thereto); provided, further, that this indemnity
agreement shall not apply to any loss, liability, claim, damage or expense
arising from an offer or sale of Registrable Securities occurring during a
Deferral Period, if a Notice Holder was given a Deferral Notice.
12
(b) In connection with any Shelf Registration in which a Holder,
including, without limitation, any Purchaser, of Registrable Securities is
participating, in furnishing information relating to such Holder of Registrable
Securities to the Company or the Trust in writing expressly for use in such
Registration Statement, any preliminary Prospectus, the Prospectus or any Issuer
Free Writing Prospectus or any amendments or supplements thereto, the Holders of
such Registrable Securities agree, severally and not jointly, to indemnify and
hold harmless the Purchasers and each person, if any, who controls any Purchaser
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act and the Company and the Trust, and each person, if any, who
controls either the Company or the Trust within the meaning of either such
Section, against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto), or any preliminary Prospectus or the Prospectus (or any
amendment or supplement thereto) or any Issuer Free Writing Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company or the Trust by or on behalf of such Holder
of Registrable Securities (which also acknowledges the indemnity provisions
herein) or any person, if any, who controls any such Holder of Registrable
Securities expressly for use in the Registration Statement (or any amendment
thereto) or such preliminary Prospectus or the Prospectus (or any amendment or
supplement thereto) or any Issuer Free Writing Prospectus (or any amendment or
supplement thereto).
Each Purchaser severally agrees to indemnify and hold harmless
the Issuers, the Holders of Registrable Securities, and each person, if any, who
controls the Company or the Trust or any Holder of Registrable Securities within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto), or any preliminary Prospectus or the Prospectus (or any
amendment or supplement thereto) or any Issuer Free Writing Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Issuers by such Purchaser expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary Prospectus
or the Prospectus (or any amendment or supplement thereto) or any Issuer Free
Writing Prospectus (or any amendment or supplement thereto).
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure to
so notify an indemnifying party shall not relieve such indemnifying party from
any liability hereunder to the extent it is not materially prejudiced as a
result thereof and in any event shall not relieve it from any liability which it
may have otherwise than on account of this indemnity agreement. The indemnifying
party, upon request of the indemnified party, shall retain counsel reasonably
satisfactory to the indemnified party to represent the indemnified party and any
others the indemnifying party may designate in such proceeding and shall pay the
fees and disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified
13
party unless (i) the indemnifying party and the indemnified party shall have
mutually agreed to the retention of such counsel or (ii) the named parties to
any such proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both parties
by the same counsel would be inappropriate due to actual or potential differing
interests between them. It is understood that the indemnifying party shall not,
in respect of the legal expenses of any indemnified party in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for (a)
the fees and expenses of more than one separate firm (in addition to any local
counsel) for the Purchasers, Holders of Registrable Securities, and all persons,
if any, who control any Purchaser or Holders of Registrable Securities within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act, collectively (b) the fees and expenses of more than one separate
firm (in addition to any local counsel) for the Issuers, their directors, and
each person, if any, who controls the Company or the Trust within the meaning of
either such Section, and that all such fees and expenses shall be reimbursed
upon delivery to the Indemnifying Person of reasonable documentation therefore
setting forth such expenses in reasonable detail. In the case of any such
separate firm for the Purchasers, Holders of Registrable Securities, and control
persons of any Purchaser and Holders of Registrable Securities, such firm shall
be designated in writing by the Purchasers. In the case of any such separate
firm for the Issuers, and such directors, officers and control persons of the
Company or the Trust, such firm shall be designated in writing by the Issuers.
The indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment. Notwithstanding the foregoing sentence, if at
any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as contemplated
by the second and third sentences of this Section 6(c), the indemnifying party
agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than
forty-five (45) days after receipt by such indemnifying party of the aforesaid
request, (ii) such indemnifying party shall have received notice of the terms of
such settlement at least thirty (30) days prior to such settlement being entered
into and (iii) such indemnifying party shall not have reimbursed the indemnified
party in accordance with such request prior to the date of such settlement.
Notwithstanding the immediately preceding sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, an indemnifying party shall
not be liable for any settlement effected without its consent if such
indemnifying party (i) reimburses such indemnified party in accordance with such
request to the extent it considers such request to be reasonable and (ii)
provides written notice to the indemnified party substantiating the unpaid
balance as unreasonable, in each case prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under this
Section 6 (whether or not the indemnified parties are actual or potential
parties thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or
14
claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 6 is for
any reason unavailable to or insufficient to hold harmless an indemnified party
in respect of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate amount
of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, in such proportion as is appropriate to reflect
the relative fault of the indemnifying party or parties on the one hand and of
the indemnified party on the other hand in connection with the statements or
omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The relative fault of the Issuers on the one hand and the Holders
of the Registrable Securities or the Purchasers on the other hand shall be
determined by reference to, among other things, whether any such untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the Issuers or by the
Holders of the Registrable Securities or the Purchasers and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The parties hereto agree that it would not be just and equitable
if contribution pursuant to this Section 6(e) were determined by pro rata
allocation (even if the Purchasers were treated as one entity for such purpose)
or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 6(e). The aggregate
amount of losses, liabilities, claims, damages, and expenses incurred by an
indemnified party and referred to above in this Section 6(e) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
For purposes of this Section 6(e), each person, if any, who
controls an Purchaser or any Holder of Registrable Securities within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have
the same rights to contribution as such Purchaser or such Holder, and each
person, if any, who controls the Company or the Trust within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act shall have
the same rights to contribution as the Company and the Trust.
SECTION 7. Information Requirements. The Company covenants that, if at
any time before the end of the Effectiveness Period the Company is not subject
to the reporting requirements of the Exchange Act, the Company will cooperate
with any Holder of Registrable Securities and take such further reasonable
action as any Holder of Registrable Securities may reasonably request in writing
(including, without limitation, making such reasonable
15
representations as any such Holder may reasonably request), all to the extent
required from time to time to enable such Holder to sell Registrable Securities
without registration under the Securities Act within the limitation of the
exemption provided by Rule 144A under the Securities Act and customarily taken
in connection with sales pursuant to such exemption; provided, however, that any
legal opinion required by any trustee or transfer agent shall be the
responsibility of such Holder. Upon the written request of any Holder of
Registrable Securities, the Company shall deliver to such Holder a written
statement as to whether it has complied with such filing requirements, unless
such a statement has been included in the Company's most recent report required
to be filed and filed pursuant to Section 13 or Section 15(d) of Exchange Act.
Notwithstanding the foregoing, nothing in this Section 7 shall be deemed to
require the Company to register any of its securities under any section of the
Exchange Act.
SECTION 8. Miscellaneous; No Conflicting Agreements. Neither the Company
nor the Trust is, as of the date hereof, a party to, nor shall the Company or
the Trust, on or after the date of this Agreement, enter into any agreement with
respect to their securities that conflicts with the rights granted to the
Holders of Registrable Securities in this Agreement. The Issuers represent and
warrant that the rights granted to the Holders of Registrable Securities
hereunder do not conflict in any material respect with the rights granted to the
holders of the securities of the Company or the Trust under any other
agreements.
(a) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Issuers have obtained the written consent of
Holders of a majority of the then outstanding Underlying Securities constituting
Registrable Securities (with Holders of Trust Preferred Securities and Junior
Subordinated Debentures deemed to be the Holders, for purposes of this Section,
of the number of outstanding shares of Underlying Securities into which such
Trust Preferred Securities and Junior Subordinated Debentures are or would be
convertible or exchangeable as of the date on which such consent is requested).
Notwithstanding the foregoing, a waiver or consent to depart from the provisions
hereof with respect to a matter that relates exclusively to the rights of
Holders of Registrable Securities whose securities are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect the
rights of other Holders of Registrable Securities may be given by Holders of at
least a majority of the Registrable Securities being sold by such Holders
pursuant to such Registration Statement; provided, that the provisions of this
sentence may not be amended, modified, or supplemented except in accordance with
the provisions of the immediately preceding sentence. Each Holder of Registrable
Securities outstanding at the time of any such amendment, modification,
supplement, waiver or consent or thereafter shall be bound by any such
amendment, modification, supplement, waiver or consent effected pursuant to this
Section 8(a), whether or not any notice, writing or marking indicating such
amendment, modification, supplement, waiver or consent appears on the
Registrable Securities or is delivered to such Holder.
(b) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, by telecopier, by
courier guaranteeing overnight delivery or by first-class mail, return receipt
requested, and shall be deemed given (i) when made, if made by hand delivery,
(ii) upon confirmation, if made by telecopier, (iii) one (1)
16
Business Day after being deposited with such courier, if made by overnight
courier or (iv) on the date indicated on the notice of receipt, if made by
first-class mail, to the parties as follows:
(w) if to a Holder of Registrable Securities that is not a Notice
Holder, at the address for such Holder then appearing in the Security Register
(as defined in the Indenture);
(x) if to a Notice Holder, at the most current address given by
such Holder to the Company or the Trust in a Notice and Questionnaire or any
amendment thereto;
(y) if to the Company, to:
American Home Mortgage Investment Corp.
538 Broadhollow Road
Melville, New York 11747
Attention: Chief Executive Officer
Telecopy No.: (516) 949-3929
with a copy to:
Cadwalader, Wickersham & Taft LLP
One World Financial Center, New York, New York 10281
Attention: Louis J. Bevilacqua, Esq.
Telecopy No.: (212) 504-6666
and
(z) if to the Purchasers, to:
Marathon Asset Management, LLC
461 Fifth Avenue, 11th Floor
New York, New York 10017
Attention: Andrew H. Rabinowitz, Esq., CPA
Telecopy No.: (212) 381-0012
or to such other address as such person may have furnished to the other persons
identified in this Section 8(c) in writing in accordance herewith.
(c) Approval of Holders. Whenever the consent or approval of
Holders of a specified percentage of Registrable Securities is required
hereunder, Registrable Securities held by the Company or its affiliates (as such
term is defined in Rule 405 under the Securities Act) (other than the Purchasers
or subsequent Holders of Registrable Securities if such subsequent Holders are
deemed to be such affiliates solely by reason of their holdings of such
Registrable Securities) shall not be counted in determining whether such consent
or approval was given by the Holders of such required percentage.
(d) Successors and Assigns. Any person who purchases any
Registrable Securities from any Purchaser shall be deemed, for purposes of this
Agreement, to be an assignee of such Purchaser. This Agreement shall inure to
the benefit of and be binding upon the
17
successors and assigns of each of the parties and shall inure to the benefit of
and be binding upon each Holder of any Registrable Securities.
(e) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be original and all of which taken together
shall constitute one and the same agreement.
(f) Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(h) Severability. If any provision of this Agreement becomes or
is declared by a court of competent jurisdiction to be illegal, unenforceable,
or void, portions of such provision, or such provision in its entirety, to the
extent necessary, shall be severed from this Agreement and the balance of this
Agreement shall be enforceable in accordance with its terms.
(i) Entire Agreement. This Agreement is intended by the parties
as a final expression of their agreement and is intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein and the registration rights
granted by the Issuers with respect to the Registrable Securities. Except as
provided in the Purchase Agreement, there are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein,
with respect to the registration rights granted by the Issuers with respect to
the Registrable Securities. This Agreement supersedes all prior agreements and
undertakings among the parties solely with respect to such registration rights.
(j) Termination. This Agreement and the obligations of the
parties hereunder shall terminate upon the end of the Effectiveness Period,
except for any liabilities or obligations under Sections 4, 5 or 6 hereof and
the obligations to make payments of and provide for Liquidated Damages under
Section 2(e) hereof to the extent such damages accrue prior to the end of the
Effectiveness Period, each of which shall remain in effect in accordance with
its terms.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties have executed this Registration
Rights Agreement as of the date first written above.
AMERICAN HOME MORTGAGE
INVESTMENT CORP.
By: /s/ Alan B. Horn
-------------------------------------------
Name: Alan B. Horn
Title: Executive Vice President, General
Counsel & Secretary
AHM Capital Trust I
By: Michael Strauss,
not in his individual capacity but solely
as Administrative Trustee
By: /s/ Michael Strauss
-------------------------------------------
Name: Michael Strauss
Title: Chief Executive Officer & President
Accepted as of the date
first above written:
MARATHON SPECIAL OPPORTUNITY MASTER FUND LTD.
By: MARATHON ASSET MANAGEMENT, LLC
By: /s/ Louis Hanover
------------------------------------------
Name: Louis Hanover
Title: Authorized Signatory
Accepted as of the date
first above written:
MARATHON GLOBAL CONVERTIBLE MASTER FUND LTD.
By: MARATHON ASSET MANAGEMENT, LLC
By: /s/Louis Hanover
------------------------------------------
Name: Louis Hanover
Title: Authorized Signatory
Schedule I
Schedule of Purchasers
Marathon Special Opportunity Master Fund, Ltd.
Marathon Global Convertible Master Fund, Ltd.
ANNEX A
FORM OF SELLING SECURITYHOLDER NOTICE AND QUESTIONNAIRE
The undersigned beneficial owner of 9.75% Convertible Trust Preferred
Securities (including the guarantee) (the "Trust Preferred Securities") of AHM
Capital Trust I (the "Trust") and/or junior subordinated convertible debentures
(the "Debentures") of American Home Mortgage Investment Corp. (the "Company")
and/or common stock, $0.01 par value per share (the "Common Stock" or
"Registrable Securities") of the Company issued upon the conversion of Trust
Preferred Securities or Debentures, understands that the Company and the Trust
have filed or intend to file with the Securities and Exchange Commission a
registration statement on Form S-3 (the "Registration Statement") for the
registration and resale under Rule 415 of the Securities Act of 1933, as amended
(the "Securities Act"), of the Registrable Securities, in accordance with the
terms of the Registration Rights Agreement, dated as of June 28, 2007 (the
"Registration Rights Agreement"), among the Company, the Trust and the
Purchasers named therein. A copy of the Registration Rights Agreement is
available from the Company upon request at the address set forth below. All
capitalized terms not otherwise defined herein shall have the meaning ascribed
thereto in the Registration Rights Agreement.
Each beneficial owner of Registrable Securities and each beneficial
owner of Trust Preferred Securities and Debentures that are convertible into
Registrable Securities is entitled to the benefits of the Registration Rights
Agreement. In order to sell or otherwise dispose of any Registrable Securities
pursuant to the Registration Statement, a beneficial owner of Registrable
Securities generally will be required to be named as a selling securityholder in
the related prospectus, deliver a prospectus to purchasers of Registrable
Securities and be bound by those provisions of the Registration Rights Agreement
applicable to such beneficial owner (including certain indemnification
provisions, as described below). Beneficial owners that do not complete this
Notice and Questionnaire and deliver it to the Company and the Trust as provided
below will not be named as selling securityholders in the prospectus and
therefore will not be permitted to sell any Registrable Securities pursuant to
the Registration Statement. Each beneficial owner is responsible for its own
compliance with any applicable state securities laws or foreign securities laws
related to its offer or sale of Registrable Securities. Beneficial owners are
encouraged to complete and deliver this Notice and Questionnaire prior to the
effectiveness of the Registration Statement so that such beneficial owners may
be named as selling securityholders in the related prospectus at the time of
effectiveness. Upon receipt of a completed Notice and Questionnaire from a
beneficial owner following the effectiveness of the Registration Statement, the
Company and the Trust will, as promptly as practicable, file such amendments to
the Registration Statement or supplements to the related prospectus as are
necessary to permit such holder to deliver such prospectus to purchasers of
Registrable Securities. The Company has agreed to pay liquidated damages
pursuant to the Registration Rights Agreement under certain circumstances as set
forth therein.
Certain legal consequences arise from being named as a selling
securityholder in the Registration Statement and the related prospectus.
Accordingly, holders and beneficial owners of Registrable Securities are advised
to consult their own securities law counsel regarding the consequences of being
named or not being named as a selling securityholder in the Registration
Statement and the related prospectus.
23
NOTICE
The undersigned beneficial owner (the "Selling Securityholder") of
Registrable Securities hereby gives notice to the Company of its intention to
sell or otherwise dispose of Registrable Securities beneficially owned by it and
listed below in Item 3 (unless otherwise specified under Item 3) pursuant to the
Registration Statement. The undersigned, by signing and returning this Notice
and Questionnaire, understands and agrees that it will be bound by the terms and
conditions of this Notice and Questionnaire and the Registration Rights
Agreement. The undersigned acknowledges that if it is a broker-dealer or an
affiliate of a broker-dealer that it will be identified in the Registration
Statement as an underwriter of the Registrable Securities.
Upon any sale of Registrable Securities pursuant to the Registration
Statement, the undersigned will be required to deliver to the Company and the
administrative trustees a Notice of Transfer (completed and signed) in the form
provided by the administrative trustees and hereby undertakes to do so.
The undersigned hereby provides the following information to the Company
and the Trust and represents and warrants that such information is accurate and
complete:
24
QUESTIONNAIRE
1. (a) Full legal name of Selling Securityholder:
-----------------------------------------------------------------------
(b) Full legal name of registered holder (if not the same as (a)
above) through which Registrable Securities listed in (3) below
are held:
-----------------------------------------------------------------------
(c) Full legal name of DTC participant (if applicable and if not the
same as (b) above) through which Registrable Securities listed in
(3) below are held:
-----------------------------------------------------------------------
(2) Address for notices to Selling Securityholder:
Telephone (including area _____________________________________________
code):
Fax (including area code): ____________________________________________
Contact Person: ___________________________________________________
(3) Beneficial ownership of Registrable Securities:
(a) Type and Principal Amount or Number of Shares of Registrable
Securities beneficially owned:
_______________________________________________________________________
_______________________________________________________________________
(b) CUSIP No(s). of such Registrable Securities beneficially owned:
_______________________________________________________________________
_______________________________________________________________________
(4) Beneficial ownership of the Company securities owned by Selling
Securityholder:
Except as set forth below in this Item (4), the undersigned is not the
beneficial or registered owner of any securities of the Company other
than the Registrable Securities listed above in Item (3).
(a) Type and Amount of other Company securities beneficially owned by
Selling
25
Securityholder:
_______________________________________________________________________
_______________________________________________________________________
(b) CUSIP No(s). of such other Company securities beneficially owned:
_______________________________________________________________________
_______________________________________________________________________
(5) Relationships with the Company and/or the Trust:
Except as set forth below; neither the undersigned nor any of its
affiliates, officers, directors or principal equity holders (5% or
more) has held any position or office or has had any other material
relationship with the Company and/or the Trust (or their respective
predecessors or affiliates) during the past three years.
State any exceptions __________________________________________________
here:
(6) Plan of Distribution:
Except as set forth below, the undersigned (including its donees or
pledgees) intends to distribute the Registrable Securities listed above
in Item (3) pursuant to the Registration Statement only as follows (if
at all): Such Registrable Securities may be sold from time to time
directly by the undersigned or, alternatively, through underwriters, in
accordance with the Registration Rights Agreement. If the Registrable
Securities are sold through underwriters or broker-dealers, the Selling
Securityholder will be responsible for underwriting discounts or
commissions or agent's commissions. Such Registrable Securities may be
sold in one or more transactions at fixed prices, at prevailing market
prices at the time of sale, at varying prices determined at the time of
sale, or at negotiated prices. Such sales may be effected in
transactions (which may involve block transactions): (i) on any
national securities exchange or quotation service on which the
Registrable Securities may be listed or quoted at the time of sale,
(ii) in the over-the-counter market, (iii) in transactions otherwise
than on such exchanges or services or in the over-the-counter market,
or (iv) through the writing of options. In connection with sales of the
Registrable Securities or otherwise, the undersigned may enter into
hedging transactions with broker-dealers, which may in turn engage in
short sales of the Registrable Securities in the course of hedging
positions they assume. The undersigned Selling Securityholder may also
sell Registrable Securities short and deliver Registrable Securities to
close out such short positions, or loan or pledge Registrable
Securities to broker-dealers that in turn may sell such securities.
State any exceptions __________________________________________________
here:
26
Note: In no event will such method(s) of distribution take the form of
an underwritten offering of the Registrable Securities without the
prior agreement of the Company and the Trust.
(7) Broker-dealers and their affiliates:
If the Selling Securityholder is a broker-dealer or an affiliate of a
broker-dealer and did not purchase its Registrable Securities in the
ordinary course of business or, at the time of the purchase, had any
agreements or understandings, directly or indirectly, to distribute the
Registrable Securities, we may have to identify the Selling
Securityholder as an underwriter in the Registration Statement or
related prospectus. Persons identified as underwriters in the
Registration Statement or related prospectus may be subject to
additional potential liabilities under the Securities Act.
(a) Are you a broker-dealer registered pursuant to Section 1.5 of the
Exchange Act?
Yes __________
No __________
(b) If your response to (a) above is "No," are you an "affiliate" of a
broker-dealer that is registered pursuant to Section 15 of the
Exchange Act?
Yes __________
No __________
For the purposes of this Item 7(b), an "affiliate" of a registered
broker-dealer includes any company that directly, or indirectly through
one or more intermediaries, controls, or is controlled by, or is under
common control with, such broker-dealer.
(c) Did you acquire the securities listed in Item 3 above in the
ordinary course of business?
Yes __________
No __________
(d) At the time of your purchase of the securities listed in Item 3
above, did you have any agreements or understandings, directly or
indirectly, with any person to distribute the securities?
Yes __________
No __________
(e) If your response to (d) above is yes, please describe such
agreements or understandings:
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27
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(f) Did you receive the securities listed in Item 3 above as
compensation for investment banking services or as investment
shares?
Yes __________
No __________
(g) If your response to (f) above is yes, please describe the
circumstances:
_______________________________________________________________________
_______________________________________________________________________
The undersigned acknowledges that it understands its obligation to
comply with the provisions of the Securities Exchange Act of 1934, as amended,
and the rules thereunder relating to stock manipulation, particularly Regulation
M thereunder (or any successor rules or regulations), in connection with any
offering of Registrable Securities pursuant to the Registration Statement. The
undersigned agrees that neither it nor any person acting on its behalf will
engage in any transaction in violation of such provisions.
The Selling Securityholder hereby acknowledges its obligations under the
Registration Rights Agreement to indemnify and hold harmless certain persons as
set forth therein.
Pursuant to the Registration Rights Agreement, the Company has agreed
under certain circumstances to indemnify the Selling Securityholder against
certain liabilities.
In the event that the undersigned transfers all or any portion of the
Registrable Securities listed in Item (3) above after the date on which such
information is provided to the Company and the Trust, the undersigned agrees to
notify the transferee(s) at the time of the transfer of its rights and
obligations under this Notice and Questionnaire and the Registration Rights
Agreement.
In accordance with the undersigned's obligations under the Registration
Rights Agreement to provide such information as may be required by law for
inclusion in the Registration Statement, the undersigned agrees to promptly
notify the Company and the Trust of any inaccuracies or changes in the
information provided herein that may occur subsequent to the date hereof at any
time while the Registration Statement remains effective. All notices hereunder
and pursuant to the Registration Rights Agreement shall be made in writing, by
hand-delivery, first-class mail, or air courier guaranteeing overnight delivery
to the address set forth below.
By signing below, the undersigned consents to the disclosure of the
information contained herein in its answers to Items (1) through (6) above and
the inclusion of such information in the Registration Statement and the related
prospectus. The undersigned understands that such information will be relied
upon by the Company and the Trust in connection with the preparation or
amendment of the Registration Statement and the related prospectus.
Once this Notice and Questionnaire is executed by the undersigned and
received by the Company and the Trust, the terms of this Notice and
Questionnaire, and the representations and warranties contained herein, shall be
binding on, shall inure to the benefit of and shall be enforceable by the
respective successors, heirs, personal representatives, and assigns of the
Company, the Trust and the undersigned with respect to the Registrable
Securities beneficially owned by the undersigned and listed in Item (3) above.
This Notice and Questionnaire shall be governed in all respects by the laws of
the State of New York.
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IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused
this Notice and Questionnaire to be executed and delivered either in person or
by its duly authorized agent.
Dated: ______________________________ ________________________________________
Beneficial Owner
By: ________________________________________
Name: ________________________________________
Title: ________________________________________
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE
AND QUESTIONNAIRE TO THE COMPANY AND THE TRUST AT:
American Home Mortgage Investment Corp.
538 Broadhollow Road
Melville, New York 11747
Attn: Chief Financial Officer